Julie Kirkbride: Does the Minister expect the IND's workload to increase when foreign prisoners facing deportation claim asylum at the end of their sentence?

James McGovern: My hon. Friend will be aware of the case of Osama Obade Sattar—a nine-year-old Dundee boy stranded in Pakistan because he was refused permission to return to the UK on his mother's Pakistani passport. This morning, my office received a call from UKvisas advising him that young Osama could apply for a Pakistani visa to allow him to return. Given that he was born in Dundee, he has lived there since his birth, and both his parents are British citizens, can we not find a better solution? What reassurances can my hon. Friend offer the understandably distressed Sattar family?

Stephen Hammond: I thank the Minister for that answer, but he must accept that funding cuts by the Home Office have meant that only 10 per cent. of potentially dangerous offenders are interviewed by the Parole Board. Surely the Home Office must accept some responsibility for that. Can he tell the House what he and his new colleagues will do to rectify that situation?

John Reid: It is not possible to provide the statistics in the way that the hon. Gentleman has requested. However, we have received a range of submissions, many of them proposing a solution which differs from our original proposal. They will all form part of our continuous consideration.

John Reid: I know that my hon. Friend is a doughty fighter for the interests of her own area. She will know that there are a considerable number of police officers on the beat and in the forces who were not there when the new Labour Government came in in 1997. There are about 13,000 more police officers. In addition, far more of them are on the beat than previously. Neighbourhood policing teams, as well as the back-ups from antisocial behaviour personnel and community wardens, and so on, mean that the capability of the police in combating crime and restoring order is far greater.
	It is true that any restructuring will be aimed at further enhancing that capability. That is the intention. This will be costly, but we have already made it plain that although restructuring will be expensive we have undertaken to meet the net reasonable costs that arise as a direct result. At this early stage, I cannot speak with great authority about the position on the street in Luton. I undertake to educate myself on that in the not too distant future, and to write to my hon. Friend.

Shahid Malik: I commend the Government on their overall approach to dealing with terrorism. They are taking a twin-pronged approach, and the first prong involves robust anti-terror legislation, of which I have been a strong and vocal supporter. Mohammad Siddique Khan was one of my constituents. The other prong involves dealing with causal factors. Over the weekend, research reports were published by the universities of Oxford, Warwick, Birmingham and Derby showing that there was disproportionate unemployment, underachievement and overcrowding in Muslim communities. Can the Home Secretary reassure me that the Government are not going to take their eye off the second prong of their approach to dealing with terrorism?

John Reid: I can absolutely guarantee that to my hon. Friend, and I commend him on the work that he has done in this area. I want to restate the view that I put forward at the beginning of this question, which is one that I have carried over from my other positions in the Government: we will not defeat terrorism by security forces, intelligence services and the armoury of weaponry that comprise the conventional forms of defence alone. They are a necessary but insufficient condition. Unless we address the underlying socio-economic problems, both domestically and internationally, we will not be successful. I therefore commit the Government to continuing in that direction. We have made a good start, but I believe that we have a long, long way to go. I look forward to working with my hon. Friend on this matter.

Mr. Speaker: The whole House appreciates what the hon. Gentleman has just said, and our hearts go out to the families of those soldiers. We appreciate the hard work that is done by every serviceman and woman in foreign lands. This is not a matter for me; it is a matter for the Minister concerned. However, the hon. Gentleman has put the matter on record, and I thank him for that.

LEGISLATIVE AND REGULATORY REFORM BILL (PROGRAMME) (NO. 2)

New Clause 19
	 — 
	POWER TO REMOVE OR REDUCE BURDENS

Patrick McFadden: I thank the hon. Member for Somerton and Frome (Mr. Heath) for his good wishes.
	Let me begin by thanking my friend and predecessor, my hon. Friend the Member for East Renfrewshire (Mr. Murphy), for his hard work in taking this Bill through its Second Reading and Committee stages. I know that it has been a great wrench for him to have to leave this Bill to take up his new post in the Department for Work and Pensions. [Laughter.]
	Today, we are debating a series of important amendments to the Bill, which are in large part the Government's response to some of the criticisms raised and fears expressed about the Bill. As my hon. Friend the Member for East Renfrewshire made clear at earlier stages, the Government did not approach those issues with a closed mind. We said that we would listen, but we were also anxious to have a better regulation system, which could root out and change unnecessary or outdated burdens on business, the public sector, charities and the voluntary sector. We should not forget that this is the third time in 12 years that Parliament has legislated on these issues.
	The amendments today will rightly take us into some detail, but the wider need for the Bill could not be clearer. We operate in a more global and competitive world economic environment than has ever been the case in our history.

John Redwood: I welcome the Minister to his interesting job. Can he tell the House what kind of measures he will want to bring forward for repeal or amendment under these clauses, as his predecessor seemed to find it difficult to give us a list of examples? He can rest assured that Conservative Members are waiting for those and will support them.

Patrick McFadden: New clause 19 will outline the focus of the Bill on better regulation purposes.
	Our subject matter is sensitive, because it not just about what the Government of the day might want; it also takes us into the realm of the relationship between Government and Parliament, and Parliament's proper role in the scrutiny and approval of Government proposals in this sphere. In that respect, I thank the Chairs of the relevant Select Committees which produced reports on the Bill; they have contributed positively and constructively to the amendments.
	The heart of what we are discussing is new clause 19 and the amendments related to it. Fears were raised that whatever my hon. Friend the Member for East Renfrewshire said, the Bill might be used not for the purposes of better regulation but to change fundamental rights and freedoms through secondary legislation.

Patrick McFadden: We will come to that amendment, but the Minister's initial judgment is not the beginning and end of the process. There are a series of safeguards, including the verdicts of the Select Committees, the consultation that must take place and the other safeguards in the Bill, so no order will be based purely on the Minister's opinion, reasonable or otherwise.

Kenneth Clarke: If, as I gather, the Minister is moving on from new clause 19, which is the hub of the whole thing, I am very grateful to him for giving way. I have listened to him give way repeatedly. Although the new clause is well-intended, its terms are still amazingly broad. Am I right in believing, looking at subsection (3), that these powers could be used to abolish a tax, to relieve an interest group or trade from a burden of taxation, or to abolish a crime, to make something lawful that was previously unlawful under the criminal law? Those may be very desirable things, but they are subject to more safeguards than consultation and Select Committees. They should be subject to parliamentary debate, before any such step is contemplated.

Patrick McFadden: There is, of course, the protection of necessary rights and freedoms, which is set out in the Bill. That would protect against the kind of situation that my hon. Friend outlines. The new definition of "burden" will also allow us to target more effectively the order-making power on removing or reducing the burdens that businesses, charities and voluntary organisations wish to see removed.

Rob Marris: I welcome my hon. Friend to his post. He has made a considerable impact in Wolverhampton, and I am sure that he will do the same as a Minister.
	I apologise because I have to leave the Chamber shortly to go to a meeting, but I suggest that my hon. Friend outlines to the Opposition the background, which they do not seem to understand, to new clause 19 in terms of the safeguards that are built into the Bill. It is not a matter of a Minister simply putting some forward. My understanding is that if the Government amendments are successful, any proposal will have to go through two Select Committees. There may be a Government majority on those, but there is a Government majority in the House. That is the way in which the House works. Having voiced considerable concerns on Second Reading, I am now worried that there are so many safeguards that the Government have gone too far the other way. I urge him to keep an open mind and explain the safeguards.

Mark Fisher: While my hon. Friend is on the issue about barriers to productivity, will he return to the point made by the right hon. and learned Member for Rushcliffe (Mr. Clarke) about taxation and the climate change levy? Many companies see that levy as a barrier to productivity. In answering the right hon. and learned Gentleman, my hon. Friend referred to clause 5, which is about precluding taxation, but it precludes only the ability to impose or increase taxes. Why does it not include the ability to reduce or delete taxes? If it did so, it would meet the right hon. and learned Gentleman's point and ensure that such provisions could not be abused.

Patrick McFadden: It is clear—it has been made clear in new clause 19—that only Ministers and Departments will be affected in terms of their exercise of a regulatory function. In these scenarios, which have been rehearsed throughout the passage of the Bill, it may always be possible to predict this and to predict that. If we go down that road, we will end up with a Bill that will be a beautiful parliamentary instrument in that it closes up every possible avenue to which the hon. Gentleman and others may draw attention. At the same time, it would not be an effective weapon in reducing deregulation.
	That scenario has not been dreamed up by me. It is what has happened on two occasions when the House has tried to legislate on these matters. I ask hon. Members who raise these matters, which they have every right to do, to bear in mind that business is watching our proceedings. Businesses, charities and the voluntary sector want an outcome at the end of this proposed legislation that will work. We must beware of continuing to amend, close off and hamper legislation so that it becomes, as I have said, a beautiful parliamentary instrument but not a useful deregulatory instrument.
	I shall draw my remarks to a close by saying that new clause 19—

Greg Knight: Will the Minister confirm that he has said nothing to alter the fact that new clause 19, even with the restrictions in clause 3, would prevent a future Government from perhaps looking at the burdens on those involved in pest control and deciding to use that vehicle to remove, for example, the ban on fox hunting?

Oliver Heald: All that I am saying is that, at a time when regulations are being made or removed, the role of the small company needs to be considered. I am going no further than that. As the hon. Gentleman will know, our policy is to accept the minimum wage. [Interruption.] Well, we accept the minimum wage, so he has not made a superb point.
	New clause 17, tabled by my hon. Friend the Member for Stone (Mr. Cash), seeks to ensure that where a fast-track deregulation order is made in connection with a provision concerning our EU obligations, it would be legally binding and effective. It is hard to disagree that that should be the position, and I believe that it probably is the position, but I would be interested to hear the Minister's views. The manner in which members states make their law is a matter for member states, and if Parliament decides to make law by order, that is for our Parliament rather than the EU.
	The Government climbdown in new clause 19 is to be welcomed. There is a case for some amendment of it, about which we will hear in a moment, and we are open to considering that. I would like to hear the Minister's response to new clause 9, which is designed to help small business. At this stage, we are minded to support my hon. Friend the Member for Stone on new clause 17, which clarifies the law as regards the EU.

David Heath: The hon. Member for Ellesmere Port and Neston (Andrew Miller) said that the Bill that left Committee engendered an odd debate. I do not think the debate was remotely odd; it was entirely proper and necessary, because the loose wording that had been adopted drove a coach and horses through our proper parliamentary scrutiny, which is why so many of us were extremely concerned.
	I again welcome the Minister to his new responsibilities. I am sorry that his first parliamentary outing is on one of the most controversial Bills of the year, although at least he has the advantage of introducing amendments that improve it rather than make it worse. He tried manfully to put as good a gloss on the process as possible, although he was not aided by the Minister for the Cabinet Office who left after 12 minutes, which I found surprising given the context of the Bill—but there we are.
	The Minister said that the Government had listened to what had been said by the Committees that have considered the Bill. The Government may have been listening but they certainly did not give the impression that they were prepared to budge an inch in the Standing Committee, where the then Under-Secretary at the Cabinet Office simply replied with assertion after assertion after assertion that it was not his intention, and that if it was not his intention it could not possibly anyone else's intention, to abuse the terms of the legislation, so it was all right.
	The only thing that made the Government think again was the message from the Government Chief Whip in another place, who told them that the Bill was as good as dead unless it was substantially amended before it went there. That is why the Government have tabled the amendments that we are discussing today—rightly so, because the Bill is important. We all wanted to support it and to develop a consensus that enabled us to do so, but we can do that only if the Government remove the wholly unsatisfactory parts of the measure. However, I can tell the Minister that I wholeheartedly agree, without demur, with one of his amendments: No. 10, which leaves out clause 1. That is an extremely good amendment.
	New clause 19 makes the situation better, but it is by no means the final article. It moves some way towards providing a limiting definition, but that definition is still open to misinterpretation and abuse. The problem with the original scope of the Bill was the huge width of interpretation that it allowed Ministers, and indeed a future House. In Committee, we argued that that could be dealt with in three ways: prescription, proscription or protections. All three are valid and more than one of them will be necessary to achieve a workable Bill.
	In this case, the Government have adopted prescription. They have set out the matters that are the province of the Bill. They have said, by definition, what the Bill is intended for and thus, by implication, that there are other matters for which it is not intended and that are outside its scope.
	Some hon. Members would argue strongly—my hon. Friend the Member for Cambridge (David Howarth) may well be one—that it would be better to have a proscriptive list of those statutes or aspects of statute that should fall outside the Bill's scope. Nevertheless, I welcome new clause 19 as at least a move in the right direction, but as the Minister knows, we and others have tabled amendments to new clause 19, and I ask him, rather than simply rejecting them out of hand, to look carefully at what they would do, because they would not work against the principles that he espouses. Indeed, they would support his view. Amendment (a) would introduce a single but very important word—"reasonably"—into new clause 19. That test of reasonableness would provide an objective, rather than subjective test of whether a Minister was doing what the Minister says would always be a Minister's intention in those circumstances.

David Heath: I cannot deal with the right hon. Gentleman's misconceptions about my party, but when he intervened earlier on the hon. Member for Ellesmere Port and Neston (Andrew Miller), I thought that the reply was valuable. The Regulatory Reform Committee ought to have a wider brief than simply responding to what Ministers put to it. The hon. Gentleman suggested an investigatory role, but it could have a collating role. I should like that Committee to perform a genuinely deregulatory function in inviting suggestions for deregulation that ought to be put before the House in the form of an order.
	I do not understand why such things must come from a Minister. The hon. Gentleman said that he excused Ministers from responsibility over what happens in their Department. I do not excuse them for a moment. They have the responsibility of making decisions in their Departments and, if they do not do that well enough, another Minister should be found. It is helpful to listen to the business world and the outside world generally about what deregulatory measures could properly be introduced.
	I also think—this is partly an answer to the right hon. Gentleman—that the need for sunset clauses in legislation made by order is a prerequisite for good regulation. We should not have regulations that simply carry on, year after year, long after the original need has been removed but remain on the statute book, applying burdens to people in business that they could well do without. As one of the few Members who has run a small business, I know of what I speak, and I feel that that is a necessary protection for businesses.
	Amendment (a) would apply the test of reasonableness to the decision that the Minister takes when determining whether he is acting in an appropriately deregulatory way. It is no good for Ministers to say, "We don't need the term 'reasonably'", because they use it in another part of the Bill—not, of course, applying to Ministers, but to members of the public who may wish to make a complaint about the way that Ministers behave. Let us not argue about whether the word "reasonably" is otiose but simply consider whether it adds to Ministers' responsibilities, and I say that it does. I do not want to make a Minister's decision justiciable in that sense, because I do not want decisions of parliamentary procedure to become a matter for the courts, but I want Ministers to behave appropriately in making that decision, and the insertion of the word "reasonably" would have that effect.
	The hon. Member for Christchurch (Mr. Chope) will speak to his amendment (b), but, as the hon. Member for North-East Hertfordshire (Mr. Heald) said, it is self-evidently a necessary protection. I hope that the Minister will seriously consider it. He seemed to dismiss it earlier, but if he thinks about it further, he will realise that it is a sensible change that would not reduce the Bill's effectiveness but simply define it more accurately.
	I do not propose to talk about amendments (d) and (e) today, for the simple reason that they also relate to new clause 15, which leads a group of amendments tomorrow, and I can explain the purpose for which they were tabled at that point. We have a slightly confused process. Nor do I need to dwell on amendment No. 4, which relates to the definition of reforming. The reformulation of the Bill means that we will have to return to that in another place. At the time when we tabled the amendment, it was crucial, but it is less crucial in the context of the Minister's new clauses.
	Amendment No. 74 also inserts the word "reasonably", but this time in clause 3, which covers the preconditions that a Minister must apply. Again, I hope that a Minister would behave reasonably. He would be required to do so under administrative law because otherwise he would be subject to judicial review, but I do not want to be in the business of encouraging the judicial review of Ministers' decisions in terms of how they present matters before the House. That is not the right way of doing business. We should make it absolutely clear that we are not talking about an assertion—to use a term that I used earlier—by a Minister or a subjective view. A Minister should have to test objectively whether he is behaving reasonably when applying those preconditions and accepting whether they have been met. That seems sensible.
	The last amendment that I wish to mention is amendment No. 78, which deals with something that has not been mentioned yet. It is a probing amendment on clause 34, which comes right at the end of the Bill and relates to its extent. When I asked the Minister's predecessor in Committee, he did not appear to have a clue why the clause was written in the way that it was. I do not want to cast aspersions on the previous Minister, but I can see why he had to be promoted, because he clearly did not understand this aspect of the Bill or many others. I want to know why the Bill asserts extraterritorial jurisdiction for itself. I am struggling to find the areas in which the orders that might be amended, repealed or replaced might apply outside England and Wales, Scotland and Northern Ireland. Under what circumstances would that apply and under what circumstances would it be appropriate for the House to fast-track an amendment to legislation, which, for one reason or another, applied presumably to a Crown dependency? There are very rare occasions on which we have extraterritorial jurisdiction, for instance in relation to some sexual offences. I simply want the Minister to explain why he thinks that that has to be in the Bill. I did not get an explanation in Committee, so I hope that I will now.
	I feel strongly about amendment (a), because it is the litmus test of whether Ministers are serious about rewriting the Bill. I hope to have the opportunity to test that in the House, given that the Bill has been completely rewritten. We are virtually back to the Committee stage with this part of the Bill, so I hope that we will have the opportunity to test the will of the House on that. I also hope that, unless the hon. Member for Christchurch gets a satisfactory answer, he will feel able to press amendment (b). If he does, we will support it.
	I know that the hon. Member for Stone (Mr. Cash) will wish to speak on new clause 17. It is axiomatic that, if a matter is dealt with through this procedure in order for a deregulatory measure to go forward, it should not be overridden by the European Communities Act 1972 and provision elsewhere. If the principles of subsidiarity are to mean anything, they must mean that. I hope that the Minister will be able to reply that that is already the case, but I fear that he may not. If he does not, and the hon. Gentleman intends to press new clause 17, I will advise my right hon. and hon. Friends to support him.

Mark Fisher: The Government have got into a terrible mess with the Bill, so it is good to know that the new Minister in charge of it is doing his best to dig them out of that mess. When the Minister's predecessor presented the Bill, he did so as if it had a different title and was called simply the "Regulatory Reform Bill". I do not think that he mentioned the word "legislation" in his Second Reading speech. As hon. Members on both sides of the House have been frustrated by and tangled in the mess of regulation that has accumulated due to legislation over the years, the Bill was waved through on Second Reading—the House did not even divide. The Bill was totally misrepresented and thought of as uncontentious.

Kenneth Clarke: May I begin as everybody else will begin by praising the policy intention behind the Bill? I very much doubt whether there is any right hon. or hon. Member, either present or elected to this House, who does not support the principle of deregulation. We all acknowledge the tremendous pressure that we are under to reverse the inexorable growth of regulation in recent years and the constant reminder we are given by British business about its damaging effects on our competitiveness, so this ought to be a non-controversial Bill. It is a minor miracle that the Government have succeeded in turning it into an extremely controversial piece of legislation. I agree with the hon. Member for Stoke-on-Trent, Central (Mark Fisher) that there is no point in going back now, but I cannot understand why the Government thought that they could carry general support for deregulation into support for a Bill of the kind that they first drafted.
	New clause 19 is indeed extremely welcome. It is the first time that the Government have moved substantially from where they started. The original Bill was drafted in an extraordinary fashion; parliamentary procedure would have been bypassed on every kind of occasion if a Government were minded to do so. New clause 19 has sought to narrow that, but it still has not gone far enough. The Government are still not inclined to restrict their scope sufficiently to reassure me that there is not the danger, perhaps a few years hence, that the provision will be misused and in a way that would further erode the power of this Parliament to check the activities of the Executive. In light of recent history, that is something of which we in this House should always be conscious.
	The best point made by the new Minister, whom I welcome to his post and who did his best to get back to common sense on deregulation, was that there is a danger that we will all be so sensitive about parliamentary procedure that we will become extremely pedantic and Governments will again find that their deregulatory legislation is quite inadequate for anything except making such minor changes as to be of no consequence to anyone. I tell myself—and I hope that everybody else will in this debate—that one must guard against that before looking at new clause 19 and saying that it is not adequate. However, I have done that and I still think that whoever produced the new clause has been too cautious.
	Proposed subsection (3) leaves open the possibility of the repeal of any kind of taxation in response to demands from pressure groups and commercial lobbies. Procedures made illegal by the criminal law could be legalised, and debate prevented by the fast-track procedure. I cited the example of the repeal of the climate change levy, because I thought that the proposal might attract the Minister's interest. Conservative Members support that repeal— presumably, he is not favour of the measure—and there is nothing in the Bill to prevent the Government from introducing it. The Bill could be used to provide an exemption to value added tax on goods or services in response to a well publicised and financed commercial lobby. VAT has become nonsense because so many exemptions have been allowed over the years for political purposes. Plenty of people would argue that their goods or services are so desirable that an exemption is the obvious thing to provide. It would be easier to give way to them, if any Government are so minded, by using the legislation. Airport passenger tax, insurance duty and all kinds of unpopular measures could be repealed under the legislation, subject only to the consultation and the veto of the Select Committee on which the Minister relies as protections.

Kenneth Clarke: I agree entirely. I am glad to know that when we return to the matter, my hon. Friend will press those points strongly, because he is right.
	In expressing my reservations still, in spite of the need for as flexible a deregulatory measure as possible, let me make it clear to the Minister that I do not fear that we will suddenly go to extreme government. I realise that some of the examples that have been cited by opponents, including the hon. Member for Cambridge (David Howarth) in his article, were fairly preposterous in the context of today's politicians. Those examples would never happen. We no longer need to argue whether the right to jury trial would be taken away. There are those in the Government who would like to take it away in a wide range of cases, but in the modern state that is today's Britain, they would never have dared to suggest that that should be done without any proper parliamentary process.
	As I have said, I do not think that we are going straight away to extreme Government. However, over 50 years we have seen a steady nibbling at the edges of the parliamentary process. Those of us who have been in this place for any length of time have seen a considerable nibble, almost always for the best of intentions in the mind of the Government of the time. I fear that for this Government, and may be for future Administrations for all I know, the pressure on the parliamentary timetable leads them to look for short cuts. I am not reassured by the Minister for the Cabinet Office—recently the Government Chief Whip—who is now in charge of the Bill. To get vast amounts of legislation through the House, the time made available for debate on any particular measure has been confined as never before.
	We can hear the arguments already when the first of the proposed changes in legislation or in the criminal law comes up. We shall hear: "We have a mandate. We have just fought the election. The opinion polls are wholly in favour of what we propose. The people who are obstructing the process are unrepresentative. They are an irritating minority." Already, time and again, the Government keep making proposals, at present about the procedures of the upper House. Those proposals are designed to stop the time-wasting, the day-by-day discussion, which irritates the Government because it delays their ability to get their way. Secondly, it reduces the amount of legislation that they can introduce, and holds up other measures on Report.

Robert Smith: Is there not an important lesson in debate about deregulation and a debate about the effect of legislation on business? A failure to scrutinise legislation effectively in this place and an ability to rush legislation through are reasons why business is facing such a burden of regulation.

David Heath: The right hon. and learned Gentleman is being very generous. For the second time in five minutes, I must accuse him of being a little too sanguine. He said that the Government would never use a procedure for nibbling away at jury trials. They have used Order in Council procedure to do just that in the context of the Criminal Justice Act 2003. They have used Orders in Council to remove the requirement for prima facie evidence for extradition to the United States. That is precisely the way in which the Government work. That is usually on the pretext of fighting terrorism or rebalancing, whatever that might mean.

Kenneth Clarke: I accept the rebuke. I was going to end by saying that although I do not think that we are going for extreme Government—I do not think that we are likely rapidly to see unlikely things happen—we have seen some unlikely things happen. During the past three or four years I have seen processes on the Floor of the House that I would not have believed could take place had I been challenged 10 years ago to say that such things might happen. The Minister dealing with the Bill on anti-terrorist measures calmly announced on Report that he was abandoning its previous wording—that he was going to alter it all in the House of Lords. We spent the timetabled three hours—the entire Report stage—discussing the text of a letter that had accidentally been leaked, and which had given the House some inkling of what that Bill was eventually going to be like. That was, so far, the occasion on which the Government have most clearly demonstrated their extreme contempt for the processes of this House when political pressures are upon them.
	Although such dangers might not be imminent on all fronts, they are very real. That is why, although what has been achieved so far is very welcome, it is most definitely not enough. I hope that the Government will accept some of the amendments being pressed on them today, and that this House and the other place will continue in their efforts to ensure that the wording eventually reflects the intention behind the Bill, and that it ties this Government down to that intention only.

John Redwood: It is a great pity that so far in this debate on this important new clause, we have had from Government Members and the Liberal Democrats not a single example of a deregulatory measure that could be deployed under this power, with the single exception of game licences. Although I am very happy to welcome that one, it is not going to change the world a great deal. One would have expected the Government, when constructing this legislation over many months, to have in mind many examples of how they wished to use this power—to be limited a bit under new clause 19—and why it was reasonable in the light of what they wish to do.
	I want the Government to succeed at deregulation. It is a bit like suggesting that a tiger should become a vegetarian, but one lives in hope that the Government believe that deregulation is necessary and wish to do it. However, it would have been so much easier to have done it in the way that we proposed in a debate before the last election in this very House. We gave the Government 63 items for deregulation, including some very big ones, which were also given in writing to the Minister's predecessor. The Government said that a parliamentary debate somehow did not count as a way of expressing our views on this matter, so I followed it up with a letter to the Department, thereby enabling officials to see that list of items for themselves. We said that that list should form the content of a deregulation Bill.
	That we are yet again having a longish debate about the constitutional implications of this Bill, just as we had to do on Second Reading and in Committee, shows that it is not a very good way of achieving the desired objective. Given that the leading Opposition party is more in favour of deregulation than are the Government, if they had introduced a proper deregulation Bill full of good ideas, it would probably have gone through much more quickly than the constitutional outrage before us on Second Reading, or the rather more limited constitutional outrage before us today.
	The hon. Member for Stoke-on-Trent, Central (Mark Fisher) is a Member whom I normally respect and praise. He is very good at defending the virtues of this House and its liberties, but he should have taken the precaution of attending Second Reading or reading the Hansard of it. Had he done so, he would have realised that I and my hon. Friends the Members for Huntingdon (Mr. Djanogly) and for South-West Hertfordshire (Mr. Gauke) made it very clear that the substantial and wide-ranging powers taken in the first draft of the Bill presented to this House were unacceptable. They allowed Ministers to regulate and legislate without going through the normal parliamentary processes. They enabled a major bypass of constitutional practice by effectively allowing primary legislation to be made by Ministers with very little reference to the House of Commons, in a regulatory, as well as deregulatory, direction.
	We are now told that new clause 19 will limit these wide-ranging powers to legislating in a deregulatory direction. As someone who desperately wants more deregulation, I say one cheer for that. But as someone who strongly believes that Parliament has a right to debate all such matters properly, I still share the concern of my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke) and others that there are still too many powers inherent in new clause 19. It would still give Ministers wide-ranging powers to do things that would be better done in the open.
	When I advised a former Government with a very large majority and a strong sense of political direction on privatisation, we had a choice. We could have said, "Let's take one piece of legislation to the House of Commons to give us an overall power to privatise anything we wish", and then do it by order-making, industry by industry; or we could have done it by primary legislation, industry by industry. I advised—I think that the Cabinet was of the same view anyway—that it should be done industry by industry with separate pieces of legislation in each case. That meant far more effort and difficulty for the Ministers concerned, but it was the right and democratic thing to do. Because those major nationalisations had been put in place by separate pieces of legislation, industry by industry, we thought that they should be undone industry by industry, with much more lengthy and bruising debates in the House of Commons. It is extraordinary that the Government can still think it right, despite the change of heart represented by new clause 19, to propose deregulatory measures that take the form of removing pieces of primary legislation that have been passed by this House without going through the reverse process that would be expected.
	Why should not we have not only an annual Finance Bill but an annual deregulation Bill? Indeed, the House might discuss and vote on the proposition that there should be a combined finance and deregulation Bill every year. It would be wonderful if the Treasury learned the habit of deregulation and legislated for its tax revenues in a deregulatory way instead of the very regulatory way that it does under this Government year after year, with hundreds of pages of new and complex provisions for old taxes as well as new ones. We could then have deregulatory budgets, Department by Department, so that each year a Department would know that there was a piece of legislation that it could use to fulfil the requirement to cut the amount of regulatory burden that it was imposing.
	Alternatively, the Government could achieve their deregulatory aims by ensuring that each major departmental piece of legislation that went through had an additional deregulatory section. We hoped that that was what the Prime Minister had in mind when he told us, in respect of regulations, that it would be a case of one in, one out. We hoped that each piece of regulating legislation would therefore contain a complementary deregulatory section so that we could be assured that the overall burden was not going up. But the Government never do that. They do not take advantage of the many legislative vehicles trundling through this House of Commons year after year, usually covering each of the main Departments in turn, by including them in their deregulatory ambitions. Today, we are again left with a truncated and guillotined debate on big changes in constitutional practice.
	Like my hon. Friend the Member for North-East Hertfordshire (Mr. Heald), I welcome new clause 19 compared with the original measure. I will not be churlish enough to vote against it, because it is moving in the right direction and I welcome it in preference to having nothing in its place. However, I urge the Government to think again about how serious they are about deregulation and whether there is a better way of achieving it than using the very considerable powers that the Bill will grant the Government if it goes through without further major amendment.
	It is disturbing that we can have many long debates on deregulation without anything of a deregulatory nature being mentioned, apart from game licences, welcome though that is. Ministers still do not seem to understand that many colleagues on both sides of the House are very worried by this power for different reasons—not only those who fear that the Government may deregulate something that they think is good regulation, but those of us who are strongly in favour of far more deregulation than the Government have in mind but would like it to be done properly by the front door instead of improperly by the back door.
	My hon. Friend the Member for North-East Hertfordshire and I find ourselves placed in a dilemma that is not of our choosing. We will not vote against new clause 19, but nor do we welcome this legislation. We welcome its intent, but we do not believe that the Government are really serious about it. If they were, they would by now have had their long lists of items that they were going to deregulate. We are left with the paradox that we may have a Bill that does not deregulate very much, but leaves on the statute book some worrying powers for future Ministers.

John Redwood: I seem to remember that in the '80s the Government carried out a lot of deregulation and liberalisation that greatly benefited whole sectors of industry such as telecoms, in which I was privileged to be involved as Minister.
	Yes, I do agree with the recommendation by the hon. Gentleman's Committee. I praise him for him for its work and for being one of the many voices that drew attention to the problems involved in the Bill.

William Cash: That would be a valid point, were it not for the fact that the only way in which it is possible to assert the legislative supremacy of this House is under, and by virtue of, primary legislation. The hon. Gentleman is a distinguished lawyer, and he probably anticipated my saying that. In my legal opinion, it would be impossible to seek to override section 2 of the European Communities Act 1972 merely by order. However, I can assure the hon. Gentleman that the mechanism that I have employed in my new clause has been before parliamentary counsel and cleared for this purpose. It says
	"notwithstanding the European Communities Act 1972",
	and refers to any order repealing, amending or replacing other legislation that has been introduced under section 2 and is therefore binding on this Parliament only by virtue of the 1972 Act. We could not change that by order, but if the authority were given by primary legislation, using the words
	"notwithstanding the European Communities Act 1972",
	that would attract the legislative supremacy of the primary legislation that the Bill before us would then provide. At that point, the provision would have effect with regard to the fast-track procedure, notwithstanding my concerns about the fast-track procedure in principle, which will no doubt be resolved on Third Reading.

David Howarth: The hon. Gentleman has made my point for me. The only kind of procedure available under the Bill is the statutory instrument, which does not receive sufficient parliamentary scrutiny. That is why many of us have objected to the Bill over the past few months. The hon. Gentleman is seeking to use a regulatory reform order, which would not receive sufficient scrutiny, to violate the principle of Community law supremacy. That would be an extraordinary thing to do, diplomatically.

William Cash: I am glad that the hon. Gentleman added the word "diplomatically" there. Ultimately, this is a matter not only of grave constitutional importance but of political significance. I would say it was more political than diplomatic, but it is a matter of great importance, for all the reasons that I shall outline.

William Cash: I am delighted that my right hon. and learned Friend has now entered into the debate with gusto. I had hoped that I might be called to speak before him, so that he could have engaged in a series of interventions on me. I am afraid that the issues that he raises do not add up.
	Since 1972, we have been subjected to a constant stream of legislation that has been brought in by prerogative. Let us take the Maastricht treaty as an example, or the treaties of Nice or Amsterdam. I do not need to weary the House with the vast amount of legislation of that kind that has gone through this House, actively encouraged by my right hon. and learned Friend. Much of it has been resisted by popular sentiment, even though not everyone has understood every jot and tittle of it. My right hon. and learned Friend himself said that he found it difficult, to use the words of new clause 19,
	"for example, where the legislation is hard to understand".
	With regard to the population at large, the same applies to much of the European legislation, which is regularly visited on them by virtue of the extremely truncated, undemocratic and unaccountable methods employed through the European treaties and the mechanisms of the House. Ultimately, those lead to legislation going through effectively because we are told that the European Communities Act 1972 is inviolable, cannot be touched and is in concrete, that there is an acquis communautaire, that we should forget about any changes, and that the constant stream of European integration must therefore continue. Well, I have news for my right hon. and learned Friend—this is a moment when we say no.

William Cash: With respect, my hon. Friend might consider that matter again. The mechanism to enable the constitutional procedure to have the effect that I desire is contained in the new clause. I think that the hon. Member for Cambridge (David Howarth) understood that. We need the backing of primary legislation, using the magic words,
	"notwithstanding the European Communities Act 1972",
	and then referring to the fact that it shall be binding in legal proceedings in the United Kingdom. That provides the mechanism whereby the judiciary are under a duty to give effect to that latest Act of Parliament.
	Before I move on to the question whether legislative supremacy is a principle to which we still adhere, I want to deal first with the reasons why, from a practical point of view, I regard it as extremely important that we understand how invasive the burdens have been in relation to the business community, industry, competitiveness and enterprise. Leaving aside the system that I have employed to achieve my results, that is my main point. For example, a short time ago, the British Chambers of Commerce produced figures showing the accumulated cost of burdens that arose in respect of a number of regulations. It did not, however, demonstrate that the top six—the most burdensome and most costly ones—were all of European origin, of which I could give several examples. The total cost, from the moment that the burdens were introduced to the moment that the figures were published, came to £25 billion. The regulations concerned included the working time regulations, the Data Protection Act 1998, the Employment Act 2002 and so on.
	In addition, Sir David Arculus, the Government-appointed chairman of the Better Regulation Task Force, estimated the cost to business of over-burdensome regulations—I stand to be corrected, as the figure seems extraordinarily high, but it is the one that he gave, as far as I can recollect—as £100 billion. No wonder the Government are looking for a way to deal with the problem. We can break down the European element of that, but we should also consider the percentage of legislation passed through the truncated, unaccountable, unattractive and undemocratic procedures in the House, which impose those expensive regulations on British business. Those regulations are then in concrete, and we can do nothing about them, whatever their merits. Once such regulations have been passed by a qualified majority vote, the legislation is imposed on us, and other member states might have a vested interest in not making changes that may be required.
	I take seriously the point made by my hon. Friend the Member for Isle of Wight (Mr. Turner). However, I do not want or intend to over-egg the pudding on this point. For me, this is essentially a practical question about the burdens on business and deregulation. It is not a foray into the abstractions of sovereignty; it is about the way that the system works. It is a time check on reality. Are we going to allow this legislation to continue to invade our business community? The House should remember that I have always said that I am in favour of trade and political co-operation, and I voted for the Single European Act, notwithstanding my attempt to preserve the sovereignty of the United Kingdom, for that reason. I wrote an article in The Times for that purpose at the time. I foresaw that we might find ourselves saturated in unnecessary burdens and that we would need to relieve them in the interests of competition. It was therefore essential to have the mechanism to enable us to do that. Unfortunately, under the rules of the supremacy of Community law—the other law, in the parallel universe that exists in legislation—we are not allowed to have that mechanism, under the terms of the case law of the European Union. The hon. Member for Cambridge and I could go through all the case law, and I would agree with him that the position is clear under Community law.
	However, all that case law, every one of those burdens and every aspect of that European legislation depend on one thing only—the legislative supremacy of this House in passing the European Communities Act 1972. As a consequence, it is open to our judiciary—as in the different context of the Human Rights Act 1998—to interpret and apply that law. That is solely, exclusively and entirely because of the European Communities Act 1972 passed by this House. If this House decides that it wishes to make changes, by whatever procedure, it is incumbent on the judiciary to give effect to that subsequent inconsistent law, providing that it is express and unambiguous. That case law is laid down unequivocally by Lord Denning in the case of McCarthy's v. Smith, by Lord Justice Laws in the case of the metric martyrs and by Lord Steyn himself in a lecture in 1996.
	There are so many misunderstandings about the role of the judiciary in these matters. So much confusion is created by invoking the principles of Community law when we are dealing with, and must continue to insist on, the principles of United Kingdom constitutional law. From the earliest days of the 17th century, in a constant movement towards the establishment of the democratic Parliament that we have today, that has been dependent on the fact that we legislate and the judges obey. I do not mean that in a derogatory sense; it is what the judges say of their own function.
	I mentioned Lord Steyn. He is well known as a distinguished lawyer, with—I would say—some influence, and with strong views about the European Community. We understand that he is enthusiastic about it. In a lecture that he gave in 1996, however, he made his opinion abundantly clear. He said
	"in countless decisions the courts have declared the unqualified supremacy of Parliament. There are no exceptions."

William Cash: Indeed. It is undesirable that fast-track procedures should be regarded as the best way in which to go about things—we have been through the argument already, and we may well vote against that proposal on Third Reading—but it is important to establish and reassert a principle. We have not had many opportunities to do that in the context of a substantive Government Bill to which amendments can be tabled for purposes of clarity.
	Let me say this to my right hon. and learned Friend the Member for Rushcliffe, a distinguished chairman of the Conservative party's democracy commission. It would not be good enough to assert—if he were to do so—that what I propose is not possible through the legislative supremacy of the House of Commons. He cannot avoid the fact that what I am saying is good constitutional law of the United Kingdom.

William Cash: Obviously, the hon. Gentleman is a late entrant to the debate. My hon. Friend the Member for North-East Hertfordshire said that they will support new clause 17. I hope that that helps the hon. Gentleman.
	The basis of legislative supremacy is that the courts obey Acts of Parliament. You are right, Mr. Deputy Speaker, to bring me back to that point, because that is the essential point that must be understood.
	"The rule of judicial obedience is in one sense a rule of common law...it is the ultimate political fact upon which the whole system of legislation hangs."
	Those are the words of Sir William Wade, one of the great constitutional authorities. I mentioned the judgments of Mr. Justice Edward Coke, which, relying on the sovereignty of Parliament, stated that the courts could void Acts of Parliament. We now have democracy, votes and general elections but, unfortunately, in the context of the Human Rights Act 1998, which I shall not dwell on, and the European Communities Act 1972, the judiciary have been trying to push the boundaries beyond the established legislative supremacy of Parliament, by drawing down a greater degree of supranationalism. They have even been saying that treaties have a special status. Neither treaties nor convention can stand in the way of legislation—of Acts of Parliament. All the judicial decisions given in the past several centuries have reasserted that main proposition. Ultimately, the judiciary derive their judicial authority from Parliament and, I should say, from the source of their payments, salaries and allowances.
	I mentioned the comments of Lord Steyn, who is by no means a person with whom one would easily disagree. In the case of Manuel v. Attorney-General, Sir Robert Megarry stated unequivocally:
	"the duty of the court is to obey and apply every Act of Parliament"
	What is required to deal with the problem facing us of burdens of business is a clear and unambiguous statement in the Bill, for which the appropriate form of words is:
	"notwithstanding the European Communities Act 1972"
	Even the case of Factortame, which dealt with the Merchant Shipping Act 1988, ultimately depended on the passing of the European Communities Act 1972. In the words of Lord Bridge, Parliament's surrender of sovereignty in the 1972 Act was voluntary. What has been given can be taken away; that is the principle. It does not necessarily follow from my new clause that there would be a political decision and a vote in the House of Commons to do that, although I believe that we have gone far too far in European integration and that we need a substantial and radical retrenchment. Even the judgment of Lord Hope in the recent case of Jackson and others v. Attorney-General ultimately depends on the 1972 Act. Mr. Justice Laws referred to "constitutional statutes", which were purported to be given an additional status over and above ordinary Acts of Parliament. In the context of the European legislation, they themselves would depend on the fact that Parliament had passed the necessary legislation.
	The Parliamentary Secretary, Cabinet Office, the hon. Member for Wolverhampton, South-East (Mr. McFadden), has it in mind that some gold-plating can be removed. However, where that gold-plating ultimately depends on the fundamental and intrinsic nature of the European directive or regulation on which it is based, merely removing it and all the Cabinet Office mechanisms that are employed, including regulatory impact assessments, transposition notes, and so on—complicated stuff that nobody in the small business community really knows exists—will be of no value at all if the fundamental issue is not tackled. In the democracy in which we live, the United Kingdom Parliament acquires its authority from the voters at general elections, which decide the Government. The hon. Member for Stoke-on-Trent, Central (Mark Fisher) is correct: Parliament is first. The bottom line is that we have the right to be able to decide what legislation is to be passed.
	There are those, such as my right hon. and learned Friend the Member for Rushcliffe, who—uncritically, I think—are willing to accept pretty well everything that comes from the European Union and do not want it to be amended or repealed. He would argue strongly, as he has today, that the mechanism that I propose is not to his liking. The reality is that we must stipulate that this House is the sovereign place where the democratic wishes of the people of this country are implemented. If it is necessary to override supranational legislation, whether the Human Rights Act or the European Communities Act, it is our right and our duty to do so.
	The legislative supremacy of this House is what the Bill is all about and it is the reason why I tabled new clause 17. I believe that, in the context of the burdens of business and deregulation, this debate has been necessary. I am extremely glad that my hon. Friends will go into the Lobby to support the new clause.

David Howarth: In one of the more arcane Committee debates, it was discovered that the words "local Act" included Acts of Parliament relating to universities, so as new clause 19 still includes those words I declare my interest as a fellow of a Cambridge college and a university reader.
	The hon. Member for Stone (Mr. Cash) is right: in the end, it comes down to a political, diplomatic choice. It is perfectly open to the House to repeal section 2 of the European Communities Act 1972 either in whole or in part, and to do whatever it wants with our relationship with Europe. I would not deny any part of his speech when he was making those remarks, but the question is whether those actions would be wise and on that matter he and I might disagree.
	I agree with my hon. Friend the Member for Somerton and Frome (Mr. Heath) that the best amendment in the group is Government amendment No. 10, which removes clause 1—a very good thing to remove. It is an extraordinary provision that allowed the Government to change any primary legislation at will. The theory that the Government appear to be following, and which they appeared to be following last Wednesday night when we were discussing House of Lords reform, is that by their mere existence as the Government they are entitled to whatever legislation they want. But that is not the constitutional theory on which this country is based. Parliament legislates, not the Government.
	Another point that we tried to make in Committee, and a mistake into which the Minister appeared to be slipping today, is that it is not the motives of Ministers, or those of the Government that matter, but what the Bill actually says. In that regard, new clause 19 is still defective in two ways. The first is that there is still no control over the subject matter to which the Bill applies. As the hon. Member for Stoke-on-Trent, Central (Mark Fisher) said, under subsection (6) the provision applies, in principle, to all legislation. In principle, the abolition of jury trial, for example, can be achieved under the Bill by statutory instrument. If new clause 26, which prevents the use of the Bill for amendments to the measure itself and to the Human Rights Act 1998, were passed, even that would not protect jury trial because the Human Rights Act does not in terms, or by implication, protect jury trial. That aspect of our legal tradition is not protected by the European convention on human rights or by our incorporation of it into our law.
	The right hon. and learned Member for Rushcliffe (Mr. Clarke) said that outlandish possibilities were being discussed, but the erosion of the right to trial by jury by the Labour Government is far from an outlandish possibility. Indeed, every time the Prime Minister talks about changing the balance in the criminal justice system he means measures of that sort.
	A second reason why control over subject matter is important is that it would still be possible under new clause 19 to institute major constitutional change by statutory instrument as long as a Minister considered that it would relieve or reduce burdens. That might include abrogation of section 2 of the European Communities Act and would certainly include matters such as the radical reform of local government, which should, in my view, be achieved only by primary legislation. Although the new clause is welcome, it needs to go much further in a number of ways. In a later group, we shall discuss new clause 16, which deals directly with subject matter, but there are other problems with the measure.
	The second major problem is the subjective test. The new clause, like the original provision, leaves the decision about whether use of the Bill is appropriate in the hands of the Minister—if the Minister considers that the conditions for its use are fulfilled. The Minister might consider that jury trial—to take that example again—constitutes an administrative or financial burden. It is right that the new clause excludes from the scope of the Bill burdens on Ministers and Departments, but a Minister could easily consider that jury trial imposed burdens on employers, by removing employees from their workplace for the duration of a trial.
	It is important to recognise the weakness of the subjective test under the new clause. Our amendment (a) would strengthen that test by inserting the word "reasonably", the effect of which would be to heighten the bar over which the Minister must leap to entitle him to use the Bill. In the longer term, the provision would give the courts clearer guidance when considering new orders under judicial review.

David Howarth: That is an important point. If there were a challenge to ministerial action, it is possible that there would be an attempt at judicial review but what would be the test applied by the court? Without the word "reasonably", the only test that the court could apply would simply be whether it was true that the Minister indeed considered that the measure was lifting a burden. It would be difficult for a court to get behind a ministerial statement to that effect unless there was clear evidence that what the Minister was saying was not true, or was unbelievable. It is all too believable that a Minister might believe that trial by jury imposed an administrative or financial burden and should be abolished.
	The same point applies to the insertion of the word "reasonably" in clause 3. Throughout the debates on the Bill, Ministers have pointed to the protections in clause 3 as a way of deflecting criticism about the removal of necessary rights and freedoms. There has been a debate, or perhaps a lack of understanding, between opposite sides of the House about what those rights are and which of them are necessary. Labour Members were concerned lest Ministers remove rights such as those relating to the minimum wage under the Bill, but Ministers have told them that under clause 3 those rights are "necessary protection". The problem with that is: who says that they are necessary protection? The answer: the Minister—subjectively. Were the right hon. Member for Wokingham (Mr. Redwood) the Minister, he might have a different view and consider the matter differently from the present Minister.
	Conservative Members were keen to emphasise that a different sort of right was necessary and the Minister tried to reassure them in the opposite direction. The Minister's defence of the Bill has run the risk of contradiction on a number of occasions.

David Howarth: Yes, I believe that to be the case. In fact, Ministers from different parties could make opposite decisions on the same matter but still be within the terms of the Bill, because all that it requires is that Ministers consider that certain things are the case.
	The Minister has followed his predecessor in asserting that none of this matters because tomorrow we will pass the Committee veto and that all our concerns should fall in at that point. All I say in response is that the Committee veto is not a veto, because the Government retain the right to overturn it in the House as a whole. If it were a Committee veto and there were no appeal against what the Committee decided, the situation might be more interesting, but even then there is the problem to which a number of hon. Members have referred that the Government's in-built majority on all Committees—indeed, their ability to change the membership of Committees in advance, as the Chancellor of the Duchy of Lancaster no doubt knows from her previous job—is enough at least to throw into doubt whether that aspect of the so-called Committee veto is an adequate protection.
	I find another aspect of new clause 19 particularly disturbing, but I will not refer to it at great length tonight because the best time for that discussion will be tomorrow in a debate on a new clause. However, two amendments in this group deal with the point, and I should explain to the House what they are about. New clause 19, like the old clause 2, contains a provision that allows, by order, legislative power to be transferred to any person. It strikes me as an extraordinary power to grant the Government, and the extent to which the person to whom that power is transferred will be subject to the restrictions in the Bill is not clear. It is that matter to which we will return tomorrow, but it is a major weakness of the Bill that the purpose for which that provision was proposed—it has been proposed again tonight—has never been made properly clear. New clause 19 is an advance on the old clause 1, but it is still deeply defective in many ways. Unless further amendments and further concessions are made, I fear that the Bill is still unacceptable.

David Heathcoat-Amory: I rise in support of new clause 17, and I wish to speak to it quite briefly, but by way of preface, I should say that I have an interest to declare in that I have a number of business interests that might conceivably might be beneficiaries of the Bill if it passes into law. From that perspective, I can confirm to the House that over-regulation is the modern scourge. As a population, we are dividing into those who do things and those who stop people doing things. That is having very severe consequences for business activity and, indeed, international competitiveness.
	My other credential for speaking in the debate is that I am a member of the European Scrutiny Committee and therefore am able to see that the regulatory itch has not abated in the European Union. Every now and then, the European Commission declares war on over-regulation—it did so again last year—but, again, I can report from my perspective on that Committee that, so far, over-regulation is winning that war. It has shifted into new policies, but the overall volume of legislation has not decreased. That is where new clause 17 becomes relevant.
	I wish to remind the House of an example of over-regulation that could become the subject of the Bill. There have been many calls in the debate for hon. Members to give specific examples of regulatory overreach that could engage the House's attention if the Bill is passed. I wish to remind the House that, earlier this year, we passed regulations implementing the artist's resale right, or to give it its French title, the droite de suite regulations, which give living artists, and will eventually give to dead artists as well, a right to a percentage of revenue when their works are resold. The British Government opposed that EU directive, but it was imposed on this country and the House by majority voting. The implementing regulations were debated earlier this year.
	Unfortunately, those regulations got into the hands of the Department of Trade and Industry and, specifically, a weak Minister in another place who spectacularly over-regulated. Instead of implementing that directive to the letter and sticking to what was strictly required by the artist's resale right directive, he ensured that the threshold was not €3,000, but €1,000 for a work of art, thus drawing into the net huge numbers of extra businesses and items and completely contradicting the Prime Minister's and the Government's earlier campaign in Brussels to try to get the directive rejected.
	The Government understood that the directive would be intensely bureaucratic. Very small sums would be collected and possibly redistributed to artists if they could be found. If a work of art was valuable, it would simply not be sold in London; the business would go to New York. That was demonstrated beyond doubt. All those arguments were forgotten by the DTI. I hope that those regulations will be reconsidered in the course of experience, because they will undoubtedly damage London's position as a leading art market, as well as not in any real way enriching poorer artists.
	In a year or two, the Government might wish to amend those regulations, and I hope that they will do so. Given that they are both EU regulations and domestically gold-plated, new clause 17 will be relevant. The House may decide simply to take the regulations back to what is strictly required by the directive; or the House may wish to go further and trespass on the terms of the directive in recognition of the campaign fought, as I have explained, right across the party divide against the directive in the first place. Therefore, it is important that Parliament is aware that those regulations could be amended even though certain requirements are entrenched in a directive. The political judgment at the time might well argue against that, and we might decide not to contradict any provision in the artist's resale right directive, but we do not know. That is a judgment, and it is important that Parliament understands and has it written into the Bill that it has powers to legislate notwithstanding the provisions of the European Communities Act 1972.
	New clause 17 is entirely unexceptional; it would not direct the House in any way to touch the 1972 Act. Indeed, it does not mention the 1972 Act as an Act of Parliament; it simply makes it clear that, in future, Parliament could legislate notwithstanding the provisions of that Act. We are not repealing the 1972 Act; we are simply reminding the House and putting into primary legislation the doctrine of parliamentary sovereignty under which we all operate and have done ever since parliamentary powers were first discussed.
	It is sometimes argued that the 1972 Act is entrenched in some way. Other countries in Europe and around the world have written constitutions that make it impossible for Parliament to legislate in conflict with an entrenched constitution. We do not have that doctrine in this country and if any hon. Member believes that we do, they need to say so now, because otherwise we are proceeding on a false assumption. As long as that doctrine of parliamentary sovereignty endures, I do not find it objectionable to amend the Bill to make it clear that if Parliament explicitly and expressly legislates accordingly, it could override directives that are in pursuance of the 1972 Act.
	That is not a constitutional revolution—rather the opposite. The measure is very modest. I hope that the Government—the Minister has given some fairly unconvincing answers to interventions so far—will address the issue of parliamentary powers. We are not saying that a future House will wish to contradict treaty provisions, although the Government are contemplating doing so at the moment. The Human Rights Act 1998 is now under question. Following a suggestion from the leader of my party, the Government are apparently looking seriously at repealing, amending or replacing certain international provisions of the European convention on human rights. That is a specific example of where we may wish to legislate in contradiction to treaty obligations.

Pete Wishart: We come to the House today to watch a rare and wondrous thing; the Government eating a large and probably unpalatable portion of humble pie. The disappointment for all of us involved in the debate is that the hon. Member for East Renfrewshire (Mr. Murphy) is not here to share in that, because he would have got a healthy portion of that humble pie. For months, he suggested that the amendments were not necessary, but today we are considering something like 50 Government amendments and new clauses. After telling us that we were simply misunderstanding him and that he had no intention of using the powers, the Government are now spelling out how the changes should be taken forward.

Andrew Miller: It is not fair to criticise someone who is not in the Chamber. My hon. Friend the Member for East Renfrewshire (Mr. Murphy) came to my Committee and spoke to all four relevant Chairs and has done a darn good job in providing the House with an opportunity to discuss an amended version of the Bill that we can hopefully all accept.

Pete Wishart: The hon. Gentleman is entirely right. The fact that it feels so much like a Second Reading means that the Bill is almost calling out for further scrutiny. We have seen a number of the amendments for the first time in the course of the past week. They need further debate and consideration and it is unfortunate that this House will not consider the important new changes; it will be the other place. We will not have an opportunity to influence that debate, because we do not have seats in the other place. I hope that when the Bill returns to this House, we will get a further opportunity to look at some of the measures. Hopefully, when it returns to us, it will be a better Bill for us to consider.
	We have a whole new raft of amendments and new clauses to address. In the main, I concede that most of the concerns have been addressed, but there are still issues and outstanding points that have to be looked at. That is why today's debate has been so important. There is no doubt whatsoever that new clause 19 is an improvement on the former clause 1, but there are still concerns and ambiguities. There are still lots of questions for the Minister to answer.
	For instance, in the case of new clause 19, what constitutes a reduction in burdens remains totally ambiguous. I know that the Government give a list in subsection (3), but when we start to unravel it, as we have done today, we can see that there are issues and problems. We have to address what we should call the Rushcliffe question—after the question that the right hon. and learned Member for Rushcliffe (Mr. Clarke) put to the Minister today. We could be talking about something that applies to the climate change levy. We have had no satisfactory response from the Government about controversial legislation being addressed through orders under the Bill. The Rushcliffe question deserves an adequate response from the Minister.

Pete Wishart: Could changes be made to the provisions of the Scotland Act 1998 and, as my hon. Friend says, the Government of Wales Act 1998 without recourse to debate on the Floor of the House?
	We must also consider subsection 7(c) of new clause 19 because although the measure includes an attempt to define "legislation", there is no definition of "enactment". Under the subsection, a ministerial order may provide for the transfer or delegation of
	"functions conferred on any person by any enactment".
	The broad-ranging power would enable Ministers to reconstruct completely many statutory bodies, executive agencies and non-departmental parties simply through subordinate legislation. Furthermore, subsection 7(d) gives Ministers the power to abolish any
	"body or office established by or under an enactment."
	It is noteworthy that subsection (7) uses the word "enactment", although the rest of new clause 19 uses the word "legislation". However, unlike the word "legislation", the word "enactment" does not seem to be defined.
	Several further matters need to be addressed, so it is unfortunate that we have lost parliamentary time for debating a measure that is, in fact, a new Bill. I hope that the Bill will be improved in the other place. I do not want the Minister to choke on his humble pie because he has moved some way to improve the Bill, but I hope that we will have the opportunity to improve it further. I hope that we will have the opportunity to vote on the Liberal Democrat amendments to new clause 19 because they would improve the measure significantly.

Richard Shepherd: The hon. Member for Stoke-on-Trent, Central (Mark Fisher) laid bare his soul by suggesting that he had been defective in not appreciating the burden of what the Bill was about. I join him in that state of sin inasmuch as the titles of Bills often deceive us as to their purpose or intent. For example, who could possibly have objected to the Civil Contingencies Bill? It was an important measure. Yet part 2 contained the right of Ministers, down to Whips, by statutory instrument or Order in Council, to change or suspend all the laws of this land with the exception, and only under pressure, of the European convention on human rights and therefore the Human Rights Act 1998. The title of a Bill does not necessarily indicate what it is about. We owe a debt of thanks to the hon. Member for Cambridge (David Howarth), as we do to the Select Committee Chairman, the hon. Member for Ellesmere Port and Neston (Andrew Miller), in drawing our attention to what the Bill is and was.
	On new clause 19, I accept that, following the furore in the press and the wider reaches of our nation, the Government agreed that the form they had adopted was inappropriate. I still think that the new clause as it stands, as a measure of unwinding parliamentary procedure and the authority of the House, is not satisfactory. It could be satisfactory to some extent if amendment (a) were agreed to. That is crucial. The point was well made that "reasonably" constrains and better defines what it is that the Minister must do, so that he can be challenged in court if he acts unreasonably. It is a critical amendment.
	My right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke) well made the point about whether we can decrease taxation by order. It is unthinkable that one should do that. I will vote against—confidently—new clause 19 on the basis that, on such a delicate, essential assertion of what is the proper process by which we discuss and consider law, it does not meet the test.
	The only other amendment that I intend to speak to is new clause 17, which I tabled. There is an extraordinarily important principle behind it, and it goes both ways. I made a simple intervention on my right hon. and learned Friend. Is the Bill the way to alter something that has been so important to the life of our nation? I wholly disagree with our membership of the European Community; do not doubt that. I did not stand by and vote for the Single European Act, unlike my more craven hon. Friend the Member for Stone (Mr. Cash). I voted against a guillotine, and it was guillotined, as is this debate. There are sections of the Bill that we cannot, or are unlikely to, discuss because of the figure of the great guillotine motion. I have spoken against those things all my political life in the House, and it bites us in the end.
	On the disapplication of the European Communities Act 1972, new clause 17 addresses the elephant in our house. The Modernisation Committee went to Finland about two years ago. The Finnish committee that judges and scrutinises European legislation accepted that 80 per cent. of its legislation came from Europe. In the case of the German Bundestag—Mrs. Merkel made reference to it—70 per cent. of its legislation comes from the European Community. Last week—my hon. Friend the Member for Stone was in attendance—Vaclav Klaus gave a lecture in London to American business men, saying that 75 to 80 per cent. of the legislation of the Czech Republic emanates from Europe.
	Our Cabinet Office two years ago suggested that, more modestly in Britain, only 40 per cent. of our legislation emanates from the European Community. How can we have a deregulation Bill without acknowledging that the greater part of our legislation, including the statutory instruments that follow it and the regulation that is attendant on it, now emanates from the European Community? In some instances, it has direct application in our law without even troubling the House. We have a process, through statutory instruments, by which those laws are nodded through.
	What is the purpose of the new clause? First, can we ignore the fact that that quantum of legislation is not regarded for the purposes of the Bill? The new clause says no. My second concern, which is more important, relates to the constitutional affirmation accepted by, I think, the hon. Member for Cambridge and articulated by my right hon. and learned Friend the Member for Rushcliffe. I am a more simple Member of the House. The long march to our democracy is summed up by Churchill's exclamation as to who is sovereign: the people are sovereign. The new clause is an expression of that sovereignty. The bypassing of that sovereignty by other means is not appropriate.

Rob Marris: The Government have listened to the arguments. They might not have accepted them all, but they have listened—hence the fairly fundamental amendments before us. If amendments that we shall consider today and tomorrow are accepted—it is up to the House whether they are—fairly fundamental safeguards will be in the Bill. There are the five locks of constitutional safeguards. As I said in my intervention on my hon. Friend the Minister, my parliamentary neighbour, I have concerns that we will end up with the same kind of Bill this year that we did five years ago—completely unworkable in the way that most Members would wish because of those safeguards. He referred to the Game Act 1831, which is the reason why the wonderful Bridgewater's butcher that is about 100 m from where I live has a sign outside it. I am sure that Bob will be happy to dispense with that sign.
	I suspect that most hon. Members would be happy if such regulation were got rid of. On the other hand, dealing with major tax increases—or tax cuts, which might still be allowed under clause 5—would not be appropriate under the Bill. There are five locks and among other things they involve two Select Committees—one in this House and one in the other place. Select Committees, certainly in this House, have traditionally had a majority who are members of the Government party. That is the way in which this House has operated since Select Committees were formed—in 1971 or whenever. Anyone who thinks that a Select Committee Chairman or his or her members are patsies have not served on one as I have. I refer not just to my hon. Friend the Member for Ellesmere Port and Neston (Andrew Miller) or whoever his successor might be. I have never come across a Select Committee member who is a patsy. Select Committees will put a block and a lock on a proposal if it is controversial, as I think amendment No. 56 says.

Christopher Chope: If that is what the Minister thought, he was right. New clause 19(2) describes the purpose that the Minister would have to establish as one of
	"removing or reducing any burden, or the overall burdens, resulting directly or indirectly for any person from any legislation".
	In my reading, provided that the Minister can establish that the purpose is to remove a burden from one person, even though that would increase the overall burden for 1 million others, there is no reason why he should not use the truncated procedures in the Bill with the limited safeguards that we have debated.
	The title of the new clause—"Power to remove or reduce burdens"—is disingenuous, and we should add the words, "or increase overall burdens". The Government say that they wish to reduce the overall burden, but if that is the case and they do not have a sinister purpose in the Bill, they should accept my amendment (b).

Patrick McFadden: That is a good try but as I have said, I cannot say on the Government's behalf that we will accept the amendment tonight.

Question accordingly agreed to.
	Amendment proposed to the proposed new clause: (a), in line 2, after 'he', insert 'reasonably'.—[Mr. Heath.]
	Question put, That the amendment be made:—
	The House divided: Ayes 194, Noes 255.

David Heath: I hope that I can also be relatively brief because I support new clause 20. I had intended to be even briefer, but after hearing the Minister's reply to my intervention, I am struggling to reconcile what the new clause says with the provisions of clauses 20 and 21. The Minister must correct me if I have misunderstood him, but he told us that although clause 23 excludes certain regulators from the provisions of clauses 20 and 21, those regulators are not excluded from the provisions of new clause 20.
	We said in Committee that it was an anomaly that the specified regulators were excluded from clause 20, which says:
	"Any person exercising a regulatory function to which this section applies must have regard to the principles in subsection (2) in the exercise of the function ... Those principles are that ... (a) regulatory activities should be carried in a way which is transparent, accountable, proportionate and consistent; ... (b) regulatory activities should be targeted only at cases in which action is needed."
	Sharp-witted Members will have realised that those words also appear in new clause 20. That measure will require a Minister to secure that regulatory functions are exercised by bodies in such as way as to comply with those precise principles, although certain regulators are excluded from those requirements as the Bill presently stands. There is thus a group of regulators that apparently does not need to comply with those principles by virtue of clause 23, but is required to do so by virtue of new clause 20, which the Minister will be able to use to ensure that regulatory functions are exercised in such a way that they comply with those principles. That seems to be an anomaly, albeit not an unwelcome one because at least the principles are there somewhere. Nevertheless, the anomaly might need to be sorted out at a later stage.

Mr. Deputy Speaker: With this it will be convenient to discuss the following: Amendment (a) to new clause 21, in line 4, leave out 'with or without changes'.
	Amendment (b) to new clause 21, in line 4, leave out 'with or without changes' and insert
	'either without changes or with such changes as are necessary to take into acount any development in the law since the time the recommendations were made.'.
	New clause 10—Law Commission recommendations—
	'(1) In section [Power to implement Law Commission recommendations], "recommendations of any one or more of the United Kingdom Law Commissions" means proposals in the form of a draft Bill or draft Order, which do not relate to—
	(a) the creation of a new offence that is punishable, or increases the penalty for an existing offence so that it is punishable—
	(i) on indictment, with imprisonment exceeding thirty months; or
	(ii) on summary conviction, with imprisonment exceeding the normal maximum term or a fine exceeding Level 5 on the Standard scale.
	(b) authorisation of forcible entry, search and seizure,
	(c) family law and rights of occupation,
	(d) landlord and tenant law, in so far as it affects the rights of tenants.'.
	Amendment No. 3, in page 1, Clause 1, leave out lines 8 and 9 and insert—
	'(b) implementing recommendations of any one or more of the United Kingdom Law Commissions, either without changes or with such changes as are necessary to take into account any development in the law since the time the recommendations were made.'.
	Government amendments Nos. 23, 27, 33, 34, 40 and 59.

Bridget Prentice: I am grateful to the right hon. Gentleman for his comments. As Chair of the Procedure Committee, I know that he has taken a detailed look at the Bill. I am interested in his remarks and would be prepared to reflect on them. However, it is not always appropriate to do everything by Standing Order. It is better to put some things in a Bill.
	It has sometimes taken too long for Governments to implement some of the proposals recommended by the Law Commission. Indeed, its report last year was fairly typical. It revealed that there were 16 accepted but unimplemented reports, with an average waiting time of more than seven years from publication to enactment. Clearly, that is not satisfactory.

Bridget Prentice: Subsection (5) does indeed go a long way to achieving what we want to achieve, but it is important that we include in the Bill the fact that amendments to Law Commission recommendations may need to be made. The most obvious example of when that might be necessary, which my hon. Friend the Member for East Renfrewshire gave in Committee, is following a time lapse such as that we have discussed, during which other things may have taken place that mean that a recommendation no longer fits the purpose for which it was intended. In that case, changes would have to be made. Amendment (a) would stifle that use.
	My hon. Friend also said in Committee that the words "with or without changes" are not intended to allow Ministers to make proposals that would turn recommendations into something completely different. If proposals are so far removed from the recommendations that they would not, in fact, implement them, under new clause 21 the proposal should not be proceeded with. I would imagine that the Scrutiny Committee would be quick to ensure that that were brought to the House's attention under the new veto provisions to be introduced in the Bill.
	The 2001 Act included numerous technical restrictions that created arbitrary limits on what could be delivered by order. The order-making powers created by the Bill should be flexible enough to achieve the effective delivery of beneficial Law Commission recommendations, which are an important part of the better regulation agenda. The correct approach is not to rule out changes but to allow proposals to be considered by the Committees. If they do not agree that the proposals implement Law Commission recommendations or satisfy the pre-conditions in clause 3 that provide important protection for people's rights, they can veto the order. We may, for example, need a power to make changes before the Law Commission recommendations become legislation. There may be scope for drafting or structural changes if the Government decide to adopt only some of the proposals in a Bill drafted by the commission. It is often necessary to make amendments to reflect changes in the law after a Committee reports. It may be desirable, too, to make material changes to the detail after further consideration or a suggestion from a scrutiny Committee. In response to the question from the hon. Member for South-West Hertfordshire (Mr. Gauke), subsection (5) would not cover all those possibilities. In summary, amendment (a) is unduly restrictive, as it would introduce sterile and time wasting arguments about form and language. We want a procedure that delivers better regulation, not one that absorbs resources in arid legal arguments over technicalities. I therefore cannot support amendment (a), so I hope that the right hon. Member for East Yorkshire (Mr. Knight) will withdraw it.
	Amendment (b) is slightly more generous than amendment (a), and is substantially the same as amendment No. 3. It would allow Ministers to change recommendations if it is necessary to take into account any development in the law since the recommendations were made, as I said earlier. It builds the case for such a change—the longer the delay between the publication of the Law Commission recommendations and the delivery of the order, the more likely it is that the law will have to be changed. In such cases, it is no longer sensible to implement the recommendations without changes, because in certain respects they may be out of date. It is important to be able to implement the recommendations with the changes necessary to reflect changes in the law.
	To that extent, I welcome the policy underlying amendment (b). However, it, too, is excessively restrictive. There may be other reasons why changes are necessary or desirable. It may be possible to improve the drafting of the draft legislation proposed by the Law Commission, not least when part of a group of recommendations is to be implemented or several sets of recommendations are drawn together in a single instrument.

Bridget Prentice: I have no intention of refereeing between parliamentary counsel and the Law Commission to decide who employs the better draftspeople. Any drafting changes made by the commission to draft legislation would be subject to consultation, and it could reflect on the responses.
	A Minister may wish to make a material change. Provided that the order remains an order to implement Law Commission recommendations, they should be able to do so. The change proposed might be as a result of consultation after the publication of the report. It might be that a change is proposed to make the recommendations of the commission more generally accepted. Indeed, as I said earlier, the scrutiny Committees themselves might wish some changes to be made. The correct approach is not to rule out changes, but to allow the proposals to come forward and be considered by the Committees. For that reason, I ask the House to resist amendment (b) to new clause 21.

Pete Wishart: Can the Minister confirm that in new clause 21, the reference to the Scottish Law Commission relates only to issues that are reserved to the Westminster Parliament under the Scotland Act 1998? That is suggested in new clause 21 and in clause 8, but nowhere in the Bill is it specifically stated.

Bridget Prentice: There is no criteria to define "controversial" other than according to what we understand in our everyday lives and the usage of the word. I am sure that my hon. Friend was involved in issues in the past that were judged to be highly controversial which are now accepted as being relatively mainstream. My hon. Friend may not appreciate my describing anything that he has done as being mainstream, but he will understand my point that things change. On that basis, we have to be able to define what is controversial now and what might be controversial tomorrow. That is quite difficult.

David Heath: The intervention from the hon. Member for Wolverhampton, South-West (Rob Marris) drew attention to the words "necessary" and "reasonable". I have always felt that I am necessary and reasonable and that what I want to put into a Bill is necessary and reasonable, although I understand that that might engender debate. In this instance, we need not be very concerned.
	There should be a mechanism for getting Law Commission proposals into law expeditiously and effectively. The first difficulty is ensuring that it is not abused to bring forward matters that are not non-controversial in any way, but that have important impacts with which many would disagree. The second difficulty is avoiding a Government either amending or cherry-picking those proposals along the way, so that what is enacted is different from what the Law Commission proposed. The third is ensuring that, wherever possible, a primary legislative route is used in preference to an order of this kind. I take seriously the point made by the Chairman of the Procedure Committee about the application, or lack of application, of Standing Orders. It seems preposterous that the Government say that they have had no opportunity to enact the long queue of Law Commission proposals when they have not used the mechanisms available in the House to do that.
	It beggars belief to say that there is a lack of legislative opportunity to introduce Law Commission proposals, especially with regard to criminal law, but even with regard to civil law. There is a criminal justice Bill every single year, as I know to my cost because I have served on the Standing Committees on most of them. There is an immigration and asylum Bill every year, without fail. Sometimes, a couple of terrorism Bills are introduced in a single year. There is a queue of legislation coming from the Home Office and the Department for Constitutional Affairs, and it does not take a great deal of ingenuity to attach Law Commission proposals to those Bills. Everything else is attached—criminal justice Bills often look like Christmas trees with the number of baubles attached because they are thought worthy of a few column inches in one of the papers.
	There are other difficulties. When is a Law Commission recommendation a Law Commission recommendation? I never had that satisfactorily explained by the Minister in Committee. Is it the original recommendations, the draft Bill that the Law Commission will produce, or either one? If it is the recommendations, the point made by the Under-Secretary of State for Constitutional Affairs, the hon. Member for Lewisham, East (Bridget Prentice) about a difference in drafting between parliamentary counsel and the Law Commission is of no importance whatever, as the recommendations are what matter. We need clarity on that.
	With regard to amendments (a) and (b) to the new clause, we are still wary about giving Ministers the capacity to introduce changes to Law Commission proposals. We asked time after time in Committee why the Minister needed that power. He repeated five times—I have looked at Hansard to confirm it—that he needed the power for one reason only: to deal with a situation in which a Law Commission proposal had been hanging around for some time, a substantive development in the law had taken place since the time that the recommendation was made, and there was a need to reflect that. That is why we formulated our amendment (b) exactly as the Minister had said at the time that he wanted it to be formulated. We formulated it in that way to meet his requirements: we had no other reason to do so.
	Some Governments are very hard to please. They tell us exactly what they want, we table an amendment to that effect, and then they want something completely different. There are other reasons for which they want to be able to change recommendations, and it is those other reasons that give us cause for alarm in this instance. If the intention is to implement some recommendations and not others, that may completely change the complexion of what the Law Commission proposes. Is the Minister proposing to cherry-pick certain proposals? Are proposals going to be tweaked to make them more acceptable to Ministers or, indeed, Select Committees? I have worries about that as well. The issue should be put before the House so that everyone has a choice to take part in the discussion, not just a select few.
	If the Bill is to contain the mechanism described by the Minister for the fast-tracking of Law Commission proposals—there are new caveats that I welcome, given their applicability to later amendments—it must also incorporate amendment (b), which limits the ability to change the recommendations in a way that the Minister specifically identified in Committee as a necessary prerequisite for effective working of the legislation.
	If the Chairman of the Procedure Committee, the right hon. Member for East Yorkshire (Mr. Knight), presses his amendment, we will support him. I merely ask him to reflect on whether our amendment would not only do the same as his, but allow a small concession to Ministers in the context of what they sought in Committee. In the light of that, he may prefer to support our amendment. In any event, the House should divide on one of the amendments. I must add that if the Procedure Committee, a Select Committee of the House, is to be ignored by Ministers, it sets a poor precedent for the working of the Bill.

Greg Knight: This is not a party-political issue. It is really a matter of judgment. I have reached the conclusion that new clause 21 is not the answer, and I hope that the Minister will reflect on what has been said this evening and will withdraw it. If she is not prepared to do so, the new clause will be rendered less offensive if the House accepts amendment (a), which incidentally has cross-party support. I hope, Mr. Speaker, that you will allow a Division on the amendment.
	As has been said, new clause 21 seeks to facilitate the implementation of Law Commission recommendations by using a fast-track procedure under the Bill "with or without changes". The Minister objects to the removal of those four words. According to the Minister for the Cabinet Office, the right hon. Member for North-West Durham (Hilary Armstrong), if time had elapsed and some of the measures had been implemented because they were deemed urgent, without the words "with or without changes" Ministers would not be able to implement the balance.
	I do not buy that argument, for reasons identified by my hon. Friend the Member for South-West Hertfordshire (Mr. Gauke) and the hon. Member for Cambridge (David Howarth). Subsection (5) of the new clause states:
	"An order under this section may contain such consequential, supplementary, incidental or transitional provision (including provision made by amending or repealing any enactment or other provision)".
	I think that the power is there.
	One of the duties of the Law Commission—some would argue that it is one of its main tasks—is to codify and bring together legislation on the same subject. Why would we want to split one of its proposals between different pieces of legislation? My reading of subsection (5) is that Ministers could implement proposals that were necessary and repeal any law changes made in the interim, and codify it all under the order-making power. That seems to me to be the right way to proceed.
	As my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) said, it is incorrect to assume that a Law Commission recommendation will be uncontroversial. When my Committee took evidence, the Minister's predecessor, the hon. Member for East Renfrewshire (Mr. Murphy), insisted on using the term "highly controversial" to describe measures to which the provision would not apply. Not just controversial, but highly controversial was the description given in each case. If the Minister is saying that she has reflected on that and is willing to lower the threshold, I would be reassured.
	I see no need for the provision to be in the Bill. We have two Standing Orders that could relate to the type of legislation that we have been discussing. Standing Order No. 58, which deals with consolidation measures, states that Second Readings and Third Readings of such measures will be taken forthwith; it therefore provides a much accelerated procedure. Standing Order No. 59, which the Conservatives introduced, with consent, when we were in government, specifically refers to Law Commission Bills and states that they should be referred to a Second Reading Committee. We made those changes with consent—that was how we did business then when we amended Standing Orders, and I regret that that is not what happens now. That Standing Order, which was introduced in 1995, has, I believe—I stand to be corrected by the Minister—not been used by the Government since 1999. One has to ask them why. Why have they not at least tried to use that provision to put Law Commission proposals on to the statute book?
	I am not saying that those two Standing Orders are perfect, but I noted what I regard as a point of good will made by my hon. Friend the Member for North-East Hertfordshire. He said that he was prepared to engage in constructive dialogue with the Minister, perhaps on ways of changing the Standing Orders to deal with such matters. The Modernisation Committee is already examining our processes, and I know that the Procedure Committee would be prepared to consider that very point. I hope that the Minister will reflect on that with a view to not going down the proposed route and to ensuring that the House always has the opportunity, through primary legislation, to consider Law Commission proposals, albeit by an accelerated procedure.

David Howarth: In view of the time I shall be brief and add only one point. The importance of the debate is that the Law Commission route is the only one under the Bill whereby Ministers can change the common law, otherwise their powers are restricted to changing statutes. The common law basis of our constitution is well-known; the rules of natural justice, for example, exist only in common law, not in statute.
	The Government have a history of changing Law Commission recommendations. On bad character evidence, for example, the Criminal Justice Act 2003 did exactly the opposite of what the Law Commission recommended, so these are serious matters. If the Government cannot bring their desires within either subsection (5) of the new clause or the second part of amendment (b), to take advantage of the power to make changes consequent on the delay in implementing the recommendations, the only proper route is not to make use of the fast-track procedure but to go back to the Law Commission and try to persuade it to take the matter forward.
	It being Ten o'clock, Mr. Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [this day].

Question accordingly agreed to.
	Clause read a Second time
	Mr. Speaker then proceeded to put the remaining Questions required to be put at that hour.
	Amendment proposed to the proposed new clause: (a), in line 4, leave out 'with or without changes'.—[Mr. Greg Knight.]
	The House divided: Ayes 196, Noes 262.

New Clause 22
	 — 
	NORTHERN IRELAND

New Clause 26
	 — 
	EXCEPTED ENACTMENTS

Northern Ireland

DELEGATED LEGISLATION

Ordered,
	That the Church of England (Miscellaneous Provisions) Measure and Pastoral (Amendment) Measure, which were laid before this House on 16th February, be referred to a Standing Committee on Delegated Legislation.—[Mr. Roy.]

MODERNISATION OF THE HOUSE

administration

Ordered,
	That Peter Luff be discharged from the Administration Committee and Mr Greg Knight be added.—[Rosemary McKenna, on behalf of the Committee of Selection.]

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Roy.]

Andrew Lansley: I am grateful for the opportunity to raise an issue of particular concern to my constituent—I shall shortly explain his circumstances—that extends to a much wider constituency of opinion. Many people both inside and outside the House think that the time to take action to try to remedy some of the difficulties in the case is overdue.
	I am grateful to the Minister for Local Government for agreeing to replying to our debate on the model code of conduct for councillors. I accept that it would be inappropriate for him to refer to the specific case of Councillor Alex Riley, but I am grateful that he will deal with the wider issues. It might be helpful if I describe the circumstances of Councillor Riley's case. For some time, he has chaired the parish council in the village of Longstanton, which is several miles north-west of Cambridge.
	As a result of the last regional structure plan and the subsequent county structure plan, a large new town is to be built to the north of Longstanton and Oakington comprising 8,000 to 10,000 homes—subsequently, the local development framework settled on 8,000 homes. That large development is very close to Longstanton, and it will envelop parts of the village. It extends to the north, west and east of the village, and in the original plans, it was no more than the distance of a football field from some points of the village.
	As chairman of the parish council, Alex Riley was closely and actively involved in the debate about the structure plans. When it became clear that active planning on the local development framework would begin, he decided to stand for election to represent Longstanton on those issues. In June 2004, he was elected with 70 per cent. of the vote in Longstanton as an independent councillor—the House will observe that this is not a party political matter. From June 2004, he sought to represent the village's views on a range of issues in the local development framework before an outline planning application was made. However, the ethical standards officer alleged that 15 breaches of the code of conduct took place in the space of just five months. I accept that the Minister will not want to comment, but the hearing of that case took place today. It concluded that Councillor Riley was responsible for breaches of the code of conduct but a penalty was not imposed, apart from the fact that he was instructed to receive training in the code. That is ironic, given that he has become insufferably familiar with it to the point of contempt. None the less, in my view—I do not propose to speak for anyone else—those were technical breaches of the code. That is one of the main reasons why no penalty has been applied.
	The issue is the extent to which councillors legitimately sent to their council chamber by constituents are able to represent those constituents. The Local Government Act 2000 set out an ethical framework for councillors, including in section 30 a model code of conduct, which South Cambridgeshire district council adopted in 2002. The code identifies two interests—first, personal interests, which can be defined as anything that might be held to affect a councillor's well-being or financial position, or that of their relatives or friends, to a greater extent than it would affect the local population generally. Secondly, there are prejudicial interests—interests that are so significant that a member of the public with knowledge of the relevant facts would reasonably regard those interests as likely to prejudice the councillor's judgment of the public interest.
	Those definitions are not at issue. Individually, Councillor Riley and all the other residents of Longstanton have personal and, in almost all cases, a prejudicial interest in relation to these matters. Planning decisions must, of course, be made in the public interest, but local residents have a legitimate expectation that that public interest includes and fully takes account of their views as the people most affected by a planning decision. We must ensure that that interest is properly and accurately reflected.
	There is confusion in South Cambridge district council about how the code of conduct should be applied. Without going into detail, it was clear in 2004 that Councillor Riley received conflicting advice about what his personal and prejudicial interests should mean in relation to his participation in the council's discussions. In October 2005 South Cambridgeshire district council took counsel's opinion. That was necessitated by the fact that the council was coming on to examine the local development framework and an outline planning application from Gallagher, which is the promoter of the large scheme. The Minister need not declare an interest, but English Partnerships, which is part of the Department, owns much of the land on which the town is to be built.
	Counsel's opinion pointed out how the district council should, in accordance with the current law, deal with the councillor. First, a councillor with a prejudicial interest would be required to withdraw whenever a meeting was held. A meeting, for these purposes, included any meeting of the authority—not just meetings that formed part of any decision-making process, but informal meetings, briefing meetings or any meeting whatsoever. Secondly, the further requirement that under the code councillors should not seek improperly to influence a matter should be interpreted to include lobbying or making any written representations to members.
	The code allows dispensations, but counsel's advice to the district council was clear. The standards committee of the council could not use those dispensations to avoid adherence to the code. Counsel instanced some of the very limited circumstances to which dispensations might be applied.
	When counsel was advising the planning authority about what Councillor Riley could do, he came up with three options. The first was that Councillor Riley should no longer be regarded as the route through which representations could be made by villagers, so representations could be made direct to the planning director. The second was that villagers should use another councillor who had no disqualifying interest. The third option was that Councillor Riley should resign. He would then be able to make representations as chairman of the parish council or as a private citizen.
	It is curious that the use of another councillor has been the route through which the district council has proceeded. The necessity for Councillor Riley not to apply improper influence has even extended to the point where he is not allowed to discuss matters in his village with the councillor who has been nominated to be the route through which such representations are to be made. Another councillor on the parish council has been so nominated and the deadening hand of the code seems almost to be extending to the point where Councillor Riley cannot even talk to Councillor Grace, who subsequently talks to Councillor Kindersley, who is the councillor through whom their representations might come. Such is the effect of the model code in the way in which it has been interpreted.
	You will not be surprised, Mr. Deputy Speaker, that I have raised the issue with the Standards Board for England. It responded helpfully in November by saying:
	"The Board shares your view that the current rules can be over-restrictive...and may exclude members from discussing certain matters which their community would expect them to be addressing or even, in certain cases, where they have been elected to represent specific views. Given the changing role of most councillors, the code needs to be seen to be supporting such local advocacy and the democratic right of a community to be represented when key matters which affect that community are under discussion."
	David Prince, the chief executive, went on to say:
	"The Board has also further recommended that the Government should also give local authorities broader powers to grant exemptions to members with prejudicial interests who nevertheless are speaking on behalf of their constituents."
	The board went on to make recommendations to Ministers that flowed from exactly the same points that were made in their letter to me. The Committee on Standards in Public Life separately has made its own recommendations to Government, and I shall quote one of them. It said:
	"In planning decisions the ability of elected members to represent constituents' interests where they have personal and prejudicial interests has been unnecessarily diminished. This should be changed to give any elected member the right to speak (but not vote) for their constituents at a planning committee meeting or any other quasi-regulatory meeting."
	In that sense, we are clear about the direction in which both the board and the committee see we need to go.
	I wrote, of course, to the Minister. He responded helpfully in January to me, making it clear that the Standards Boards had made these recommendations that he was minded to accept. I suppose that I could have rested on that and not exposed the issue to further gaze in the House, but I wanted to use this opportunity to say that I think that the current situation is untenable. In the case of South Cambridgeshire district council, there has been the benefit of counsel's opinion. It is not an arbitrary opinion. We have arrived at the point where, not seeking improper influence, where Councillor Riley can barely speak to any of his fellow councillors without it being thought to be an improper influence. He cannot even go to informal meetings, briefing meetings or information meetings in the same way as members of the public attend to ascertain what is happening. He cannot ask questions and he cannot make representations.
	Across the country, I have no doubt that this is not the only example. The hon. Member for Northavon (Steve Webb) raised an instance not dissimilar to it on 8 November last year. Throughout the country either councillors are unknowingly breaching the code, as Councillor Riley did in 2004, by speaking on matters where they have an interest, even if they know that they do not have to vote. In many cases they have not concept of the extent to which the moral code of conduct can be interpreted as constraining them. Alternatively, we have councillors throughout the country who are being excluded from discussion of the very issues that they know best and about which they have been elected to represent their constituents.
	Councillor Riley and I do not expect that he should be able to vote on issues where he has a personal or prejudicial interest. He does expect to make a full declaration of interests. He expects also that his representations should be made only openly and transparently. He does not expect to undertake private lobbying or to participate in discussions after he has made his representations. He does however expect to have access to briefings, and to be able to ask questions and make representations in cases where his council colleagues will be making decisions. He said to me plainly that if he cannot persuade them of the merits of the argument, he will understand and accept that he has failed in his task. It is his responsibility to make the arguments.
	The issue is not settled; Ministers need to make progress. The outline application for the Northstowe development, which encompasses Longstanton, has yet to be considered and determined. Circumstances such as Councillor Riley's will arise elsewhere in the country. It is important that changes to the code be made as a matter of urgency. If the code is not changed under the secondary legislation that local government legislation permits, this negation of democracy will carry on and, far from inspiring confidence in local government, the code of conduct's application will bring local government into disrepute.

Phil Woolas: Congratulations are due to the hon. Member for South Cambridgeshire (Mr. Lansley) on bringing to the House's attention the case of his constituent, whose views have been represented. This case also raises wider issues of relevance to the hon. Gentleman's other constituents. I am very grateful to the hon. Gentleman for explaining my responsibilities in this regard; it is always helpful when that happens. I am conscious that whenever we debate parish matters, newspaper headlines reporting our deliberations do not scream off the presses. However, there are some 80,000 parish councils in the country, and in my experience it is wise to take these debates very seriously, because many councils rightly take a close interest in these proceedings. The issues that the hon. Gentleman has raised concerning the code of conduct apply not just to parish councillors, but to councillors across the board.
	I am also grateful for the opportunity to discuss the rules of conduct for councillors in the context of the planning regime. These rules are set out in model codes of conduct for local authority members—including, of course, members of parish councils—with the aim of maintaining the highest standards of the public conduct of local authority members. We consider it important to promote such standards for parish councils, as for other tiers of local government.
	As has been said, it is difficult for me to comment on individual circumstances, but where allegations impinge on an individual planning application, that application could be referred to the Secretary of State or to one of her inspectors on appeal. In those circumstances, I would not wish to say anything that might subsequently prejudice the quasi-judicial appeal process.
	Actively promoting high standards of behaviour among local authority members is of course an important objective for any Government. Many men and women devote their time and energy to the service of their communities, and the overwhelming majority of people elected to serve as local authority members already observe the highest standards of conduct. But it is also important to get the balance right—an issue that I will discuss in a moment.
	We cannot disguise—nobody wishes to—the fact that failings occur from time to time, and given that tens of thousands of people are involved, that is going to be so. However, it is worth noting that instances of elected members falling short of the conduct expected of them are very rare indeed. Such misconduct not only harms the community that members are elected to serve; it can damage the wider reputation of local government and undermine the public's trust in, and confidence in, the system as a whole. I noted carefully the hon. Gentleman's reference to the pendulum perhaps swinging too far, as some might see it, and to that itself bringing the regime into disrepute. The need to maintain public trust is just as true for parish councils as it is for other tiers of government.
	The planning system involves a considerable amount of discretion, and councillors on a planning committee may arrive at a decision based on a variety of considerations. However, the law defines that decision-making duty. Failure to act within the confines of these provisions may render the council open to legal challenge by means of judicial review. The role of an elected member on a local authority planning committee involves balancing the need to represent the interests of individual constituents and the community with the need to maintain an ethic of impartial decision making on what can be, and often are, highly controversial proposals.
	In 1997, the Government committed themselves to reinvigorating local democracy, focusing on enabling councils to provide the local leadership that their communities need and to deliver the services they want. In order to tackle the need for a higher degree of public trust, we introduced a new framework under the Local Government Act 2000 to promote standards of ethical behaviour. We felt that the new framework must help to dispel public criticism about those in public life by demonstrating clearly that unethical behaviour is just as unacceptable to those who have been elected as it is to the communities that they represent.
	The framework indicates the high standards that are expected and requires an explicit commitment to them. Let me remind the House that the most significant provisions of the ethical regime were: the introduction of new statutory codes of conduct; the establishment in each authority of a standards committee to provide support and guidance to members on the requirements of their local code; and the creation of what was then a new body, the Standards Board for England, to promote high standards nationally and to investigate alleged breaches of the code in an independent and consistent manner.
	The codes of conduct set out the conduct that is expected of members and provide a sensible framework for handling personal interests which should ensure that, providing that they have no prejudicial interests, councillors can take part in discussions and decisions and so represent their electors to the best of their ability. From May 2002, the provisions of the codes have applied to all councillors, and any allegations that the code has been breached can be reported to the Standards Board, which can then decide whether to investigate.
	The model codes provide that members have a prejudicial interest in a matter if, as the hon. Gentleman said, the interest is one that a member of the public would reasonably regard as so significant as to be likely to prejudice the member's judgment of the public interest. A member with a prejudicial interest is required to withdraw from the meeting at which the matter is discussed.
	The codes also provide that members should not use their position to confer an advantage for themselves or any other person. Various further guidance documents have been issued to assist members in carrying out their roles in respect of the planning regime and the need to have regard to their own personal and prejudicial interests. Chapter 8 of the document, "Probity in Planning", which is issued by the Local Government Association, makes it clear that councillors who have openly declared a view on an application should not use their position to lobby other councillors or organise a caucus to support their position. Elsewhere in chapter 8, it is made clear that other political meetings should not be used to reach a decision in advance of the committee which will make the decision.
	A document prepared by the LGA, "Member engagement in planning matters", gives similar advice. The purpose of that document is to explain to members how they can become more engaged in discussions without fettering their discretion. However, if they do, the guidance is clear. It states:
	"Members who do take an active stand in support or assistance to an application should withdraw from the planning committee deliberations. Responding to lobbying is fully legitimate where a councillor openly admits an interest in the outcome of deliberations and withdraws from the discussions on which they have a particularly strong view and stands down for the period while the item is under discussion."
	We wish to make the planning system fairer and more transparent. Accordingly, my Department continues to work with its partner bodies, such as the Local Government Association, to produce advice and guidance for elected members on propriety issues in planning. Indeed, the Planning Advisory Service, which is an arm of the Improvement and Development Agency, is financed by the Government. Its creation was one of the benefits of the £600 million in planning delivery grant allocation made available to improve the system.
	When they were initially issued in 2002, the model codes were generally welcomed. There were certainly some complaints from the smaller parish and town councils, particularly about the requirements to register interests. It was feared that a sledgehammer was being used to crack a nut. However, many of the concerns have been eased as councillors have grown familiar with the conduct regime, and it now has broad support. This has been assisted by the Standards Board's own provision of support, guidance and training to parishes on the operation of the system.
	It is sometimes suggested that the introduction of the code of conduct for parishes has caused parish councillors to resign. I took those fears very seriously, because it is obviously important to get the balance right. However, I am pleased to be able to tell the House that there is little or no evidence to suggest that significant numbers of councillors have resigned as a result of the code.
	That brings me to the subject of the hon. Gentleman's debate. The recent reports of the Graham Committee and the Office of the Deputy Prime Minister Select Committee—which was so ably chaired by my hon. Friend the Member for Ipswich (Chris Mole)— considered the future of the local government ethical regime. They supported the continuing inclusion of parish councillors within that regime.
	The conduct regime has now been in operation for four years. We have recently reviewed it, and our proposals for change were set out in our discussion paper of 15 December 2005. They included proposals to make decision making under the regime more locally based, to make the Standards Board a more strategic regulatory body, and to make the code of conduct simpler, clearer and more proportionate. We are hoping to make changes to ensure that the framework meets the objectives that it was created to achieve, and that the lessons deriving from practical experience in operating the rules are learned.
	As part of our follow-up to the discussion paper, our review of the code of conduct will take into account the recommendations on changes to the code made by the Standards Board. These include proposals for a reduction in the number of interests that members need to declare, and for a relaxation of the rules relating to prejudicial interests to support the advocacy role played by members, particularly in respect of dual-hatted members—that is, those who are members of more than one public body.
	However, there is a continuing need to ensure that measures are in place to provide confidence that decisions are being made in the public interest, and that clear conflicts of interest—for example, where members stand to gain personally from a decision over and above the gain to others in the community—will continue to be proscribed by the code of conduct.
	We believe that the vast majority of local councillors are honest and committed to the service of their communities. We wish to demonstrate to local communities that their councillors are signed up to the highest standards of conduct.